Onuzi is yet another case where the lack of detail in the British Nationality Act 1981 as to how tribunals should consider appeals in citizenship deprivation cases has led to further consideration by Senior Courts. The broad principles for such consideration were set out by the Supreme Court in R(Begum) v Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765. However, the application of those principles continues to be explored.
The case was an appeal from the Upper Tribunal where, using a power conferred by s. 40(3) of the 1981 Act, the Secretary of State had made a decision to deprive Mr Onuzi of British citizenship (acquired by naturalisation) on the grounds that it had been obtained by fraud). Mr Onuzi had claimed asylum in a false identity, claiming to be from Kosovo rather than Albania. While maintaining his false identity, he obtained British citizenship.
Having uncovered his true identity, the Secretary of State made her deprivation decision. On appeal to the First-tier Tribunal, Mr Onuzi succeeded in arguing that his British citizenship had not been obtained by means of fraud. However, the Secretary of State appealed and the Upper Tribunal found an error of law in the First-tier Tribunal’s approach, going on to remake the decision and dismiss Mr Onuzi’s appeal.
The Court of Appeal granted Mr Onuzi permission to appeal as his case afforded the Court an opportunity to consider the proper test to be applied on appeal. However, a short time later, it handed down judgement in Chaudhry v Secretary of State for the Home Department [2025] EWCA Civ 16, [2025] KB 395, holding that a tribunal hearing a deprivation appeal had a fact-finding jurisdiction as to whether there had been fraud but could only review the deptvation decision that citizenship had been acquired by means of fraud on public law principles. The Court was bound by that decision when it came to hear Mr Onuzi’s case.
Given the developments in the law in Chaudhry as well as the subsequent judgment of the Supreme Court in U3 v Secretary of State for the Home Department [2025] UKSC 19, [2025] 2 WLR 1041, Mr Onuzi reformulated his case within the grounds on which he had permission to appeal. He argued that when the Secretary of State considers whether British citizenship has been acquired by means of (subsequently discovered) fraud, she should look back to consider what she might have done had she known of the fraud at the time she was considering whether to grant the citizenship application.
It was submitted that in so doing, she must consider what it is likely she would have done under British nationality law and policy as it stood at that time. In Mr Onuzi’s case, the applicable naturalisation policy as to when an applicant was of good character was both evaluative in nature and flexible in application. It was not the case that had the fraud been known, refusal was inevitable. It was argued that in applying public law principles, the First-tier Tribunal should review whether the Secretary of State had taken this approach or whether she had fallen into error.
In giving judgment, the Court of Appeal held that no error arose in the Upper Tribunal’s dismissal of Mr Onuzi’s appeal. It found no public law error in the Secretary of State’s deprivation decision that, had the truth been known, Mr Onuzi would have been refused British citizenship on the grounds that he was not of good character. The Court did not give express consideration as to how a tribunal ought to proceed in applying public law principles when determining an appeal against a deprivation decision made on grounds that citizenship had been obtained by fraud. Such issues remain to be explored.
Adrian Berry KC, Christopher McWatters, and Tomor Bhaja acted for Mr Onuzi, instructed by Rajni Chodha of Duncan Lewis Solicitors.
